CNN's Arena failed to question Gonzales on accusation that he "misled" Congress

During an interview with Attorney General Alberto R. Gonzales, CNN Justice Department correspondent Kelli Arena failed to question Gonzales about his 2005 confirmation hearing, in which he responded to a question from Sen. Russ Feingold about whether the president could authorize warrantless domestic wiretaps. At the hearing, Gonzales suggested that Feingold had described a "hypothetical situation," despite the fact that the warrantless surveillance program had been in place since 2001 and that President Bush had reauthorized it numerous times.

The February 2 edition of CNN's The Situation Room featured excerpts of an interview with Attorney General Alberto R. Gonzales, conducted by CNN Justice Department correspondent Kelli Arena, about the Bush administration's warrantless domestic surveillance program. At no point in any of the excerpts shown, however, did Arena ask Gonzales about comments he made during his 2005 confirmation hearings, in which Gonzales, under oath, responded to a question from Sen. Russ Feingold (D WI) about whether the president could authorize warrantless domestic wiretaps by suggesting that Feingold had described a "hypothetical situation," despite the fact that the warrantless surveillance program had been in place since 2001 and that President Bush had reauthorized it numerous times. Arena apparently failed to question Gonzales on those responses, even though two days earlier she reported on a January 30 letter Feingold sent to Justice accusing Gonzales of misleading Congress.

Senate Judiciary Committee hearings into the warrantless domestic surveillance program are scheduled to begin on February 6.

At Gonzales's confirmation hearing, Feingold asked Gonzales if the president has the authority to "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales responded by saying Feingold phrased his question "as sort of a hypothetical situation." In his January 30 letter to Gonzales, Feingold, a member of the Judiciary Committee, wrote: "I am particularly interested in asking about your misleading testimony at your confirmation hearing on January 6, 2005, when I specifically asked you if the President has the authority to authorize warrantless wiretaps in violation of statutory prohibitions. As the attached transcript shows, you initially tried to dismiss my question as 'hypothetical.' "

Arena reported on Gonzales's 2005 statements and Feingold's accusation on the January 31 edition of CNN's The Situation Room, hosted by Wolf Blitzer:

ARENA: Wolf, if the pre-show is any indication, next week's Senate Judiciary hearings on the NSA [National Security Agency] program could get very ugly. Senator Russ Feingold is accusing the attorney general of misleading Congress during his confirmation hearings last year, when he was asked about warrantless wiretaps.

[...]

ARENA: Justice Department officials say that there was nothing misleading about Gonzales's statement and that the president is on firm legal ground. Gonzales is scheduled to testify all day Monday, Wolf.

Nonetheless, at no point during any of the interview clips aired by CNN did Arena ask Gonzales about the comments he made at his 2005 hearing testimony.

From the February 2 edition of the Situation Room:

ARENA: Wolf, Senate Democrats are pushing the attorney general to turn over classified legal opinions on the president's domestic surveillance program in advance of his testimony before a Senate committee on Monday. If he continues to refuse, Senator Dianne Feinstein [D-CA] says the documents should be subpoenaed. In an interview earlier today, the attorney general defended the administration's stance.

[begin video clip]

ARENA: Some members of Congress have said, well, look, there was initially some concern over this program, some inside debate within the Justice Department over this program. That could help them understand what the thinking was at the time, what limitations, if any, were set on this program. Wouldn't that be helpful?

GONZALES: I think, of course, people have a natural curiosity about the operations of the program and on our thinking and the deliberations that went into our analysis. But part of -- part of what we're trying to protect is the ability of lawyers within the department to have a very open and candid discussion, debate about some of these complicated legal issues that I've already outlined. We want to encourage that. People may -- lawyers -- I mean, this is our job, is to discuss difficult issues. And to disagree.

ARENA: We've heard two things from you: that the Foreign Intelligence Surveillance Act is still relevant in the war on terror. But I've also heard you say that it doesn't allow you to move quickly enough. Why not just change FISA?

GONZALES: It is clear that the Foreign Intelligence Surveillance Act still remains very, very relevant. And these -- this is a very important tool on the war on terror. But the question whether or not FISA is effective or not is, quite frankly, irrelevant to the question of whether or not the president is acting lawfully. If the president is acting without any kind of legal authority, the fact that FISA is effective or not, quite frankly, doesn't make -- shouldn't make a difference. And if, in fact -- if we all assume or believe that the president is acting lawfully, then the president should -- as commander in chief, should choose which tool is the most effective, the tools under the terrorist surveillance program, the tools under FISA. The president should choose which tool is the most effective in protecting America.

ARENA: Can you tell us any more about how narrow the program is? You said that you would hope to be able to talk in more specific terms. Can you?

GONZALES: The physics are such that we have a great degree of confidence -- I don't know if certainty is the right word, but, certainly, a great degree of confidence that every call that's being surveilled, one end is outside the United States. And we also -- and the president has authorized surveillance with respect to only those calls where we have a reasonable basis, which is very similar to probable cause, a reasonable basis to believe that one person on the call is member of Al Qaeda or a member of a group affiliated with Al Qaeda. That determination is not made by local -- a local appointee.

ARENA: Either -- so, they have to belong to a terrorist group? It's not somebody who is linked to a terrorist group?

GONZALES: It can't be just any terrorist group. It can't be a member of Hezbollah, for example. We are talking about someone who is a member of Al Qaeda or someone how has worked -- a member of a group that is working in concert or assisting or helping al Qaeda, assisting in part of the Al Qaeda effort to destroy the United States.

[end video clip]

ARENA: Now, the attorney general wouldn't get any more specific about the NSA program, arguing that the people who most want to know the operational details are terrorists.